Full opinion text
OPINION ON MOTIONS FOR REHEARING Opinion by Justice MOSELEY. Several parties have filed motions for rehearing. We deny all such pending motions for rehearing. On the Court’s own motion we withdraw our opinion of March 28, 2003 and vacate our judgment of that date. This is now the opinion of the Court. This case stems from the bankruptcy proceedings of National Gypsum Company (“National Gypsum”) and its parent company, Aancor Holdings, Inc. (“Aancor”). Appellants asserted various claims based on actions allegedly taken by appellees in connection with National Gypsum’s valuation during the course of the bankruptcy proceedings. Pursuant to Tex.R. Civ. P. 166a(c), the trial court granted summary judgment against appellants on all their claims, which they challenge on appeal. In a cross-point, appellees contend the trial court erred in failing to grant summary judgment on the grounds of limitations, and in granting summary judgment for appellants on an attorneys’ fee shifting provision of the bankruptcy plan. For the reasons set forth below, we reverse the trial court’s judgment, render judgment in part, and remand this cause for further proceedings. I. STANDARD OF REVIEW The standards for reviewing a summary judgment granted pursuant to rule 166a(c) are well established. The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985); Smiley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). A defendant moving for summary judgment must either (1) conclusively disprove at least one element of the plaintiffs theory of recovery, or (2) plead and conclusively establish each essential element of an affirmative defense. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979); Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 657 (Tex.App.-Dallas 1992, no writ). As discussed in more detail below, the various appellees advanced several grounds in support of numerous motions for summary judgment against appellants. The trial court specifically rejected the motions based on the statute of limitations, but granted the motions for summary judgment in all other respects. However, the trial court’s order does not specify which of the remaining grounds asserted in appellees’ motions formed the basis, or bases, of its summary judgment. Thus, we affirm the summary judgment if any of the theories advanced, and not specifically rejected by the trial court, are meritorious. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001) (per curiam); Carr v. Brasher, 776 S.W.2d 667, 669 (Tex.1989). Accordingly, appellants must show that none of appellees’ remaining grounds were a proper basis for summary judgment. See Holloway v. Starnes, 840 S.W.2d 14, 18 (Tex.App.-Dallas 1992, writ denied). Additionally, we consider all summary judgment grounds on which the trial court actually ruled, whether granted or denied, that are preserved for appeal and are dis-positive of the appeal. See Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 5 (Tex.1999); Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625-26 (Tex.1996). Further, we may also consider summary judgment grounds expressly presented to but not ruled on by the trial court, if the summary judgment movant presents the alternative grounds on appeal. Baker Hughes, Inc., 12 S.W.3d at 5. Lastly, if an appellant does not properly challenge each independent ground for summary judgment asserted against a claim, we affirm the summary judgment as to that claim. Smith v. Tilton, 3 S.W.3d 77, 83 (Tex.App.Dallas 1999, no pet.). In deciding whether a disputed issue of material fact exists, that would preclude summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at 548-49. Further, every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Id. It is from this perspective that we review the summary judgment record. II. BACKGROUND AND PROCEDURAL HISTORY A. Introduction This is a complex case, involving issues of state and federal law litigated in a variety of courts over several years. The record is over 31,700 pages in length. The parties’ briefs before this court refer to approximately 450 cases and other authorities. The appellants in this case include a group of junior bondholders of the old National Gypsum Company, represented by Prostok, Field and Earnest, and several groups that had asserted asbestos related claims against the old National Gypsum Company. The appellees include some of the former officers and directors of National Gypsum and its parent company (“Officers and Directors”); their financial advisor, Donaldson, Lufkin & Jenrette Securities Corp. (“DLJ”); some of National Gypsum’s senior bondholders; and the senior bondholders’ financial advisor, Houlihan Lokey Howard & Zukin Capital (“Houlihan Lokey”). The new National Gypsum Company (“New NGC”), formed pursuant to a plan of reorganization approved by a federal bankruptcy court, intervened in the district court and brings a separate cross-appeal. The parties are described in more detail in the following sections. However, the essence of the case is a dispute between the junior bondholders and asbestos claimants on the one side (as appellants herein), and the senior bondholders, management of National Gypsum, and their respective financial advisors on the other (as appel-lees herein), with cross-appellant New NGC generally siding with the latter group regarding the merits of that dispute. During this appeal some of the parties have settled some or all of the claims asserted by and/or against them. Those claims and parties will be identified herein as well. However, the issues before this court are framed in part by the nature of the litigation below and before other courts, and by the various parties’ participation in portions of that litigation. Thus, for purposes of clarity we describe the entirety of the disputes between the parties. B. National Gypsum Bankruptcy In 1986, National Gypsum, a manufacturer of building materials, was the subject of a leveraged buyout, becoming a wholly owned subsidiary of Aancor. To finance this buyout, National Gypsum and Aancor issued approximately $1 billion in bonds. On October 28, 1990, faced with mounting debt and a multitude of asbestos lawsuits, National Gypsum and Aancor each filed voluntary petitions for relief under chapter 11 of the United States Bankruptcy Code. The cases were consolidated and jointly administered in the United States Bankruptcy Court for the Northern District of Texas in Dallas; for convenience the two proceedings are referred to herein as one proceeding — the National Gypsum bankruptcy. At the time, the National Gypsum bankruptcy was one of the largest bankruptcy cases in American history. The bankruptcy case was highly contentious; National Gypsum’s valuation was hotly contested by the various interested parties, and the parties advocated multiple competing plans of reorganization. National Gypsum had three classes of publicly traded debt: (1) senior notes worth about $295 million; (2) senior debentures worth about $188 million; and (3) junior bonds worth about $537 million. The senior notes and debentures were held by several entities referred to as the Senior Bondholders, who are some of the ap-pellees in this case. The junior bonds were held by persons and entities referred to as the Junior Bondholders, including appellant Prostok and the class members he represents. Others interested in the National Gypsum bankruptcy included parties holding actual or potential claims against National Gypsum arising from the manufacture, distribution, or use of asbestos products; these parties are generally referred to herein as the Asbestos Claimants. 1. Allegations of Undervaluation The Junior Bondholders’ interests were represented in the bankruptcy by the official committee of bond and trade unsecured creditors (“BT Committee”). In January 1992, the BT Committee attempted to replace National Gypsum’s management, which was acting as a debtor-in-possession under the Bankruptcy Code, with a bankruptcy trustee. Among other allegations, the BT Committee claimed National Gypsum’s management and its financial advisor, DLJ, were manipulating the economic projections of the company in order to diminish its value. However in March 1992, after a two-day evidentiary hearing, the bankruptcy court rejected the BT Committee’s motion, stating that insufficient evidence was presented to justify removing National Gypsum as debtor-in-possession and replacing it with a trustee. 2. Reorganization Plans National Gypsum submitted a reorganization plan to the bankruptcy court based on a valuation of its business of between $300 and $375 million. The plan proposed to divide National Gypsum’s assets between two entities. National Gypsum would change its name and keep certain insurance policies and the Austin Company, a National Gypsum subsidiary. The plan further created and funded the NGC Asbestos Disease and Property Damage Trust, which would own the stock of old National Gypsum and use its funds to settle asbestos claims against National Gypsum. The second entity receiving National Gypsum’s assets under its proposed plan was a new National Gypsum Company (“New NGC”), a separate corporate entity to be organized under Delaware law. New NGC would own National Gypsum’s operating assets and ongoing business. The management team of National Gypsum would remain as the management team of New NGC. New NGC would largely be owned by the senior noteholders and bondholders of National Gypsum, with the junior bondholders receiving warrants to acquire an additional 10% of the shares in the new company. The senior noteholders would receive new senior notes and approximately 67% of the common stock in New NGC. The holders of senior debentures would receive 20% of the common stock of New NGC. The value of the warrants received by the junior bondholders was considered “speculative in nature.” The Senior Bondholders and the committee of asbestos claimants supported National Gypsum’s reorganization plan, and did not propose a plan of their own. Unhappy with management’s valuation of National Gypsum and their resulting prospective share of New NGC, the BT Committee proposed a competing plan of reorganization based on a valuation of National Gypsum’s business of $630 million (in contrast to the $300 to $375 million valuation asserted by National Gypsum). Regarding selling, general and administrative expenses, the BT Committee plan further opined that a “cost conscious management would succeed in identifying cost reductions and efficiencies so as to effect an annualized savings per year of $5.0 million.” The BT Committee plan used additional debt to increase the recoveries of creditors and allegedly avoid the danger of undervaluation in the National Gypsum plan. Under the BT Committee plan, the senior noteholders would have received two new classes of corporate notes rather than stock in the new company. The holders of senior debentures would have received 100% of the common stock of New NGC. The junior bondholders under this plan would have received warrants, as under the National Gypsum plan, but the warrants would have entitled them to purchase up to 45% of the new company at a lower exercise price. During the hearings on the confirmation of a reorganization plan, the BT Committee and other interested parties contested National Gypsum’s valuation. The BT Committee alleged that management and its advisors had intentionally manipulated the financial data and operating projections, resulting in a lower valuation for the business. The bankruptcy court conducted a five-day evidentiary hearing on the issue. Afterwards, the bankruptcy court rejected the BT Committee’s proposed plan and its $630 million valuation of National Gypsum, citing problems with the valuation method and certain creditors’ lack of acceptance of the proposed plan. The bankruptcy court informed the parties that it gave greater weight to National Gypsum’s valuation and would approve its plan. Thereafter, the court entered an order (the “confirmation order”) confirming the reorganization plan proposed by National Gypsum based on a value of $350 million on the effective date. Although the bankruptcy court’s confirmation order was entered on March 9, 1993, the bankruptcy proceedings did not end until July 9, 1993, at which time the bankruptcy court declared that the reorganization plan had an effective date of July 1,1993. One provision of the plan and confirmation order at issue in this case is referred to as “the fee-shifting provision.” It provides that, in any lawsuit challenging the good faith of certain parties, including New NGC, the Officers and Directors of National Gypsum and their financial ad-visors, for certain actions taken during the bankruptcy, the losing party will be liable for the winning party’s reasonable attorneys’ fees and costs. As a condition to continuing such litigation, the fee-shifting provision also requires all parties to provide adequate assurance that they will be able to pay those fees if they do not prevail in the litigation. Pursuant to the confirmed reorganization plan, the Senior Bondholders received approximately 85% of the stock in New NGC in exchange for their National Gypsum indebtedness. Thus, the Senior Bondholders stood to receive a windfall if the value of New NGC was substantially higher than claimed in the National Gypsum plan. The Junior Bondholders’ debt was exchanged for approximately two million warrants for New NGC stock, about 10% of the company, exercisable at $14.50 per share. Thus, according to the Junior Bondholders, the $587 million debt owed to them was to be wiped out for less than $30 million. A party may appeal from an order confirming a reorganization plan within ten days of its entry. See Fed. R. BankR.P. 8002(a). Either no party appealed the confirmation order, or any such appeal was subsequently dismissed. Additionally, an interested party may contest a bankruptcy confirmation order on the basis that it was procured by fraud within 180 days after its entry. See 11 U.S.C. § 1144 (1993). However, no interested party requested the bankruptcy court to set aside the confirmation order based on fraud. The 180-day period under section 1144 expired on September 9, 1993. Approximately one month later, on October 5,1993, New NGC announced a new cost-savings plan for the business that allegedly resulted in an annual reduction of $30 to $40 million in selling, general, and administrative expenses. C. Appellants’ Claims Briefly stated, appellants allege that during the course of the bankruptcy proceeding, the Senior Bondholders, the Officers and Directors of National Gypsum (many of whom became the officers and directors of New NGC), and their respective financial advisors, intentionally undervalued National Gypsum by concealing a plan to dramatically reduce the company’s operating expenses — a plan allegedly devised in secret by National Gypsum’s consultant while National Gypsum was acting as debtor-in-possession in the bankruptcy. Appellants allege that the Officers and Directors received secret, lucrative compensation packages for going along with the strategy to conceal the cost-savings plan. Then, after the company emerged from bankruptcy as New NGC (and after the 180 day deadline for setting aside a confirmation order for fraud had passed), the plan to reduce the operating expenses was publicly announced and implemented. More specifically, appellants allege ap-pellees represented to the bankruptcy court and to them that the reorganized National Gypsum, with expenses “cut to the bone,” was worth only between $300 and $375 million. Appellants assert, however, that during this same time period appellees were fully aware of a cost-sav-mgs plan authored by Harry Leonhardt, a consultant hired by National Gypsum, which would involve a small investment in computerization and result in a drastic reduction in workforce. "When implemented, this plan resulted in annual expense savings of $30 to $40 million, five to eight times the expense savings estimated in the BT Committee proposed plan. Appellants claim appellees concealed not only the cost-savings plan, but the fact that National Gypsum had hired consultants to come up with the plan, until the bankruptcy was final and the confirmation order could not be revoked. Appellants contend that after the cost-savings plan was announced and implemented, New NGC’s stock price rose from about $12.50 per share to $45 per share, and ultimately reached $54 per share before New NGC was taken private in April 1995. Appellants allege that the announcement and execution of the previously undisclosed cost-savings plan resulted in an increase in the market value of New NGC’s outstanding stock from $350 million to almost $1 billion. Because the Senior Bondholders’ debt against National Gypsum had been exchanged for New NGC stock pursuant to the reorganization plan, the increased valuation of New NGC resulting from the cost-savings plan increased the values of their investments by substantial amounts, far in excess of their original debt. For example, it is alleged that on an investment of approximately $40 million, the TCW creditors made a gross return of $140.9 million, and on an investment of approximately $38.1 million, Water Street made a gross return of $101 million. In contrast, the Junior Bondholders’ debt securities had been exchanged for a limited number of warrants in the new company. Thus, the Junior Bondholders allege they were unable to (and, were specifically and deliberately excluded from being able to) proportionally benefit from the increased value of New NGC’s stock resulting from management’s implementation of the cost-savings plan. Likewise, the Asbestos Claimants allege the intentional undervaluation of National Gypsum resulted in the Trust being funded with substantially less money than it otherwise would have, to the detriment of those having asbestos-related claims against National Gypsum. According to appellants, the purpose of appellees’ activities was to keep the stated valuation of National Gypsum as low as possible until after the company emerged from bankruptcy, allowing the Senior Bondholders to avoid sharing with competing creditors (such as the Junior Bondholders and the Asbestos Claimants) as much of the National Gypsum “pie” as they would have otherwise. By cooperating in the plan, the Officers and Directors allegedly benefitted by maintaining their positions in New NGC and by receiving the lucrative incentive deals. D. Litigation History The parties have litigated disputes relating to the National Gypsum bankruptcy in a number of different proceedings, some of which took place simultaneously. We summarize the significant litigation as follows. 1. Current Case The current case was filed in state court on October 5, 1995, by appellant Prostok on behalf of himself and all others similarly situated (i.e. the Junior Bondholders), against the Officers and Directors, DLJ, and later the TCW Parties, based upon their alleged actions in intentionally concealing the cost-savings plan and leading the bankruptcy court to undervalue National Gypsum. The defendants removed the case to federal district court on November 15, 1995. The federal district court referred the case to the bankruptcy court, where it was assigned Adversary No. 395-3612 in the National Gypsum bankruptcy case. On March 26, 1996, the bankruptcy court remanded the case to state court for lack of federal jurisdiction. The remand order was affirmed by the federal district court on February 21,1997. Following the remand to state court, on June 10, 1998, Prostok filed his Third Amended Original Petition, adding the TCW Parties as defendants. Prostok did not (and does not) allege any claims against the other Senior Bondholders or their financial advisor, Houlihan Lokey. Prostok alleged claims for: (1) breach of fiduciary duty against the Officers and Directors, DLJ, and the TCW Parties; (2) participating, aiding, assisting, and/or inducing breach of fiduciary duties against DLJ and the TCW Parties; (3) fraud and constructive fraud against the Officers and Directors, DLJ, and the TCW Parties; (4) gross negligence against the Officers and Directors and DLJ; and (5) civil conspiracy against the Officers and Directors, DLJ, and the TCW Parties. On March 30, 1998, New NGC intervened in this action. On July 24, 1998, New NGC joined the trustees of the Trust as “involuntary plaintiffs.” New NGC alleged that under the terms of the confirmed reorganization plan, the claims asserted by Prostok in this case (and similar claims the Asbestos Claimants had asserted in other courts) were in fact owned by New NGC. Thus, New NGC alleged appellants lacked standing to bring those claims, and sought a declaratory judgment to that effect. New NGC also alleged the provisions of the reorganization plan precluded appellants’ claims. In a later pleading, New NGC alternatively asserted that the plan’s fee-shifting provision required appellants, as a condition to continuing the suit, to prove their ability to pay the reasonable attorneys’ fees and costs of New NGC, the Officers and Directors, and DLJ in successfully defending the suit. The Officers and Directors and DLJ also filed counterclaims against appellants under the fee-shifting provision. On August 28, 1998, the Trust filed its claims in this action against the Officers and Directors, DLJ, and the TCW Parties. The Trust also joined as additional defendants the other Senior Bondholders (Water Street and Fidelity Management) and Houlihan Lokey, none of which had been parties to Prostok’s suit. The Trust asserted claims of fraud, breach of fiduciary duties, misrepresentation, gross negligence, civil conspiracy, and aiding and abetting the breach of fiduciary duties by others (i.e. the Officers and Directors) during and after the bankruptcy proceedings. Initially, the Trust alleged both a direct fiduciary duty with the Officers and Directors, DLJ, and the Senior Bondholders and Houlihan Lokey, and a conspiracy between these defendants to aid and encourage the fraud and breach of fiduciary duty by the Officers and Directors. In a later supplemental pleading, the Trust added an allegation of aiding and abetting a breach of fiduciary duty against the Senior Bondholders and Houlihan Lo-key. On December 2, 1998, the Legal Representative and the School District parties intervened and adopted the Trust’s pleadings. Appellees filed a series of motions for summary judgment. The Officers and Directors, DLJ, and New NGC filed a motion for summary judgment asserting the Asbestos Claimants lacked standing to bring the claims asserted in this action. All appellees then joined in a motion for summary judgment asserting that appellants’ respective claims against them did not exist under Texas law. (This was the only motion for summary judgment asserted by the Officers and Directors against Pros-tok.) Specifically, this motion argued that: Texas law does not recognize claims for perjury or spoliation; plaintiffs’ claims were barred by Bankruptcy Code section 1144; plaintiffs’ claims failed because they relied on an inapplicable fraud on the market theory; the bankruptcy court judgment could not be attacked in state court; and plaintiffs’ conspiracy claims failed because there was no underlying tort. The TCW Parties (except for TCW Group, Inc.) also filed a separate supplemental motion for summary judgment against Prostok. (The TCW Parties were the only Senior Bondholders sued by Pros-tok.) This motion sought summary judgment on the grounds of limitations, res judicata and collateral estoppel, and the absence of a fiduciary duty. The Senior Bondholders and Houlihan Lokey also filed a supplemental motion for summary judgment against the Asbestos Claimants. This motion asserted that: the Asbestos Claimants’ claims were barred by the applicable statute of limitations, res judicata, and collateral estoppel; they owed no fiduciary duty to the Asbestos Claimants; and that the Asbestos Claimants lacked standing to assert their claims. On March 1, 1999, the trial court denied the motions for summary judgment based on no-evidence and statute of limitations grounds. However, it granted summary judgment against Prostok’s and the Asbestos Claimants’ claims in all other respects, without stating the specific grounds. Prostok and the Asbestos Claimants then moved for summary judgment on New NGC’s cross-claim and the counterclaims of the Officers and Directors and DLJ. (These claims sought to enforce the fee-shifting provision of the bankruptcy plan.) On April 21, 1999, the trial court signed a final judgment addressing all remaining claims in the suit. The judgment granted appellants’ motions for summary judgment on the claims based on the fee-shifting provision and, on the court’s own motion, dismissed as moot New NGC’s intervention asserting its ownership of the claims. The judgment addressed all remaining claims, denied all other relief, and stated it was a final judgment. Thus, the March 1, 1999, interlocutory order on the appellees’ motions for summary judgment merged into this final judgment, which is the judgment on appeal before us. 2. Federal Declaratory Judgment Actions On October 17, 1995, Prostok filed a declaratory judgment action in the bankruptcy court against the Officers & Directors and DLJ, seeking a determination that the fee-shifting provision in National Gypsum’s plan of reorganization did not apply to Prostok’s state court class action. This matter was docketed within the bankruptcy proceeding as Adversary No. 395-3477. New NGC intervened in the adversary proceeding as an additional defendant and moved to dismiss the complaint. The defendant/intervenors also asserted counterclaims seeking a declaratory judgment that Prostok’s state court lawsuit was barred because of various preclusion defenses. The fee-shifting provision was part of a paragraph in the reorganization plan providing that if certain parties, including the officers, directors, and financial advisors of New NGC, National Gypsum, and other entities, acted in good faith during the bankruptcy proceedings, they would not be hable for any actions or inactions in connection with operating the debtor, implementing the transactions contemplated by the plan, or administering the plan, except for willful misconduct or gross negligence. The fee-shifting provision states in relevant part, In any action, suit or proceeding by any Claimant, Interestholder or other party in interest contesting any action by, or non-action of, Debtors, Reorganized NGC, New NGC, ... or their respective ... officers, directors, ... [and] financial advisors, ... as not being in good faith, the reasonable attorneys’ fees and costs of the prevailing party shah be paid by the losing party and as a condition to going forward with such action, suit, or proceeding at the outset thereof, all parties thereto shall be required to provide appropriate proof and assurances of their capacity to make such payments of reasonable attorneys’ fees and costs in the event they fail to prevail. On cross-motions for summary judgment, the bankruptcy court held the fee-shifting and other provisions of the reorganization plan were final orders not subject to modification, but declined to exercise its discretion to decide the declaratory judgment questions, deferring instead to the state court. On appeal, the federal district court affirmed the finality of the fee-shifting and other provisions of the plan, but reversed the bankruptcy court’s decision to not rule on the declaratory judgment action and counterclaims, and remanded the case to the bankruptcy court for further consideration. After the remand, the Asbestos Claimants (which were not parties to Adversary No. 395-3477) filed a motion in the main National Gypsum bankruptcy case challenging whether the fee-shifting provision applied to a similar lawsuit that they were contemplating. Thereafter, the bankruptcy court disposed of both Prostok’s declaratory judgment action (Adversary No. 395-3477) and the Asbestos Claimants’ motion in the main bankruptcy case in an order entitled “Memorandum Opinion and Orders,” dated January 21, 1998 and filed January 26, 1998 (the “January 21, 1998 Order”). In general, the bankruptcy court held the fee-shifting provision was final and binding on Prostok and the Asbestos Claimants, but that it may have been entered in error and therefore should be strictly construed. The bankruptcy court concluded that the release provision in the first part of the paragraph was a limitation on the scope of the fee-shifting provision at the end of the paragraph. The bankruptcy court also concluded that the fee-shifting provision may violate public policy. Thus, the court held that the fee-shifting provision, although final, did not apply to “claims based on gross negligence or willful misconduct relating to the confirmation process,” such as those brought by Prostok (in the state court lawsuit) or by the Asbestos Claimants (in Adversary No. 397-3454). The bankruptcy court also considered the declaratory judgment counterclaims and denied the defendants’ motions for summary judgment seeking to bar Pros-tok’s claims on the grounds of res judicata and collateral estoppel. On May 8, 1998, the bankruptcy court entered a final judgment in the Prostok declaratory judgment adversary proceeding (Adversary No. 395-3477). It held, based on the January 21, 1998 Order, that the fee-shifting provision did not apply to Prostok’s state court suit and granted him relief from any bankruptcy injunctions against suit. The court abstained from further consideration of the counterclaims raising res judicata and collateral estoppel defenses and administratively closed the case. Thus, the January 21, 1998 Order was subsumed into and confirmed by the May 8, 1998 final judgment. The Officers and Directors, DLJ, and New NGC appealed the May 8, 1998 judgment’s and the January 21, 1998 Order’s determination the fee-shifting provision did not apply to Prostok and the Asbestos Claimants to the district court. The federal district court reversed in part the bankruptcy court’s May 8, 1998 judgment and January 21, 1998 Order. See Nat’l Gypsum, Co. v. Prostok, No. 3:98CV0869P, 2000 WL 1499345 (N.D.Tex. Oct. 5, 2000), aff'd, - F.3d -, No. 00-11097, 2002 WL 1397140 (5th Cir. June 14, 2002) (unpublished table decision). The district court held that the bankruptcy court construed the fee-shifting provision too narrowly, and reversed the January 21, 1998 Order to the extent it held that Prostok and the Asbestos Claimants did not have to comply with the fee-shifting provision. Id. at *22-*23. The district court found the fee-shifting provision was distinct from the release provision. If a claim was not released because it involved “willful misconduct, gross negligence or other bad faith actions (i.e. actions challenging good faith), then the challenging party must post a bond and be subject to fee shifting to pursue that claim.” Id. at *20. In response to arguments by DLJ that express findings of good faith in the confirmation order precluded the type of bad faith claims raised by appellants, the district court concluded the fee-shifting provision allowed lawsuits challenging the good faith of the protected parties and thus constituted an exception to the good faith findings in the other provisions of the confirmation order. Id. at *24. Prostok and the Asbestos Claimants then appealed the district court’s decision to the Fifth Circuit. The Fifth Circuit held that the fee-shifting provision was basically a contract, that it did not violate public policy, and that the bankruptcy court erred in construing the provision too narrowly. Nat’l Gypsum Co. v. Prostok (In re Nat’l Gypsum Co.), — F.3d —, No. 00-11097, 2002 WL 1397140, slip op. at 13-14 (5th Cir. June 14, 2002) (unpublished table decision). The Fifth Circuit found that the fee-shifting provision applied to any suit by a claimant contesting any action or inaction by the protected parties as not being in good faith. Id. at 14-15. The court then concluded that Prostok’s and the Asbestos Claimants’ suits fell within the scope of the fee-shifting provision and affirmed the decision of the district court. Id. at 20. 3. The Trust Litigation On October 6, 1997, in Adversary No. 397-3454 (described earlier), the Trust first brought its claims against the Officers and Directors, DLJ, the Senior Bondholders, and Houlihan Lokey. The Trust’s complaint was almost identical to Prostok’s petition in state court and alleged the Trust suffered damages as a result of the intentional undervaluation of National Gypsum. On motion of the Officers and Directors, the bankruptcy court abstained from considering the claims and administratively closed the adversary proceeding without making any determinations on its merits. The Trust later filed a similar suit against the same parties in the 128th District Court of Orange County, Texas. That suit was removed to federal court in the Eastern District of Texas and docketed as Civil Action No. 1:98CV1671. That suit was dismissed after the Trust had asserted its claims in the suit now pending before us. E. Partial Settlements After the final judgment entered in this case was appealed, several of the parties settled their claims against each other. DLJ and a number of the Officers and Directors settled their disputes with appellants; accordingly, all claims asserted against and by DLJ and by and against the settling Officers and Directors have been severed from this appeal and remanded to the trial court to permit it to effectuate their respective settlements. Thus, we do not discuss those claims further. (For clarity, future references to the “Officers and Directors” in this opinion refer to only those Officers and Directors who have not settled.) Additionally, all of the Asbestos Claimants reached a potential settlement of their claims with the remaining defendants in this case and New NGC, and all claims asserted by and against the Asbestos Claimants have been severed from this appeal and abated. Thus, the only remaining parties on this appeal are Prostok, the Officers and Directors, the TCW Parties, and New NGC. F. Issues on Appeal Prostok’s sole issue on appeal is whether the trial court erred in granting the Officers’ and Directors’ and the TCW Parties’ motions for summary judgment against the Junior Bondholders. In the context of this Malooly issue, Prostok argues the trial court erred in granting summary judgment against the Junior Bondholders’ claims on the grounds that the claims: (1) were barred by section 1144 of the Bankruptcy Code; (2) were barred as a collateral attack; (8) against the TCW Parties were barred by claim preclusion and issue preclusion, also known as res judica-ta and collateral estoppel, respectively; (4) as asserted indicated that the TCW Parties did not owe the Junior Bondholders a duty; (5) alleged claims only for spoliation of evidence and perjury, which are not recognized under Texas law; and (6) depended on a non-applicable “fraud on the market” theory. On cross-appeal, the TCW Parties argue that Prostok’s claims against them are barred by limitations and that the trial court erred in denying their motions for summary judgment on this ground. New NGC also cross-appealed, complaining the trial court erred in dismissing its intervention, which asserted it was the true owner of the causes of action asserted by Prostok and the Asbestos Claimants. New NGC also complains the trial court erred in granting summary judgment against it on its cross-claims for attorneys’ fees under the fee-shifting provisions of the reorganization plan. The Officers and Directors joined New NGC’s cross-appeal on their fee-shifting counterclaim. III. Limitations Cross-Point We begin with the TCW Parties’ cross-point concerning limitations. The trial court specifically denied the TCW Parties’ motion for summary judgment against Prostok on the statute of limitations affirmative defense. On cross-appeal, the TCW Parties assert the trial court erred in denying summary judgment on this ground because all of Prostok’s claims against them are barred by limitations. Even though the trial court rejected this ground, we consider whether the summary judgment on Prostok's claims against the TCW Parties can be sustained on this basis. See Cincinnati Life Ins. Co., 927 S.W.2d at 626. The following dates are relevant to the statute of limitations analysis: • March 9, 1993 — Date of order confirming reorganization plan. • October 5, 1993 — Public announcement of cost-savings plan. • October 10, 1993 (approximate) — attorney contacts Prostok about a “good lawsuit.” • January/February 1994 — National news articles reporting allegations the Senior Bondholders bribed management to withhold cost-savings plan. • October 5, 1995 — Prostok files suit against the Officers and Directors and DLJ in Texas court. • June 10, 1998 — Prostok files Third Amended Petition, adding TCW Parties as defendants for the first time, and asserting breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, fraud and constructive fraud, and civil conspiracy. A. The TCW Parties’ Arguments The TCW Parties argue Prostok’s claims are barred by the two and four-year statutes of limitations. They assert Pros-tok’s claims for breach of fiduciary duty, aiding and abetting breach of fiduciary duty, and conspiracy are all governed by the two-year statute, and that the fraud claim is governed by the four-year statute. They argue Prostok’s alleged causes of action against them accrued when the bankruptcy court confirmed the plan of reorganization on March 9, 1993, because that court rejected similar claims of fraud. Alternatively, they claim those causes of action accrued on October 5, 1993, when New NGC publicly announced the cost-savings plan. They also note that allegations about the TCW Parties’ inducing management to conceal the cost-savings plan were made in the national press in February 1994. The TCW Parties recognize that the discovery rule applies to these causes of action, but argue that the summary judgment evidence conclusively proved Prostok discovered or should have discovered his injuries more than four years before he sued the TCW Parties. B. Prostok’s Arguments Prostok and the Junior Bondholders argue the trial court properly refused to grant summary judgment in favor of the TCW Parties because they failed to carry their summary judgment burden to conclusively establish the limitations defense. Prostok argues that the four-year statute of limitations applies to all of his claims against the TCW Parties. He argues that because the discovery rule applies in this case, the TCW Parties had the burden to prove as a matter of law when each of the class members discovered or should have discovered the alleged fraud. Prostok alleged he could not have discovered the facts giving rise to his claim against the TCW Parties until May 1998. Prostok argues his causes of action did not accrue on March 9, 1993 (the date of the confirmation order) because the allegations of fraud and breach of fiduciary duty made in the bankruptcy proceeding relate to entirely different events than those giving rise to his causes of action asserted here. He claims the allegations raised in the bankruptcy proceeding related to events taking place in 1991 and 1992; in contrast, he says, the allegations asserted against the TCW Parties in this case arise from entirely different events, namely: devising and concealing the cost-savings plan, which was not announced until October 1998. Further, with respect to October 5, 1993 (the date the cost-savings plan was announced), Prostok argues the TCW Parties failed to prove that any class members actually were or should have been aware of the announcement before June 10, 1994, and that they should have discovered TCW’s fraud as a result. In response to whether his causes of action accrued in February 1994 (when the New York Times printed an article raising the possibility of fraud by the TCW Parties and the other Senior Bondholders), Prostok argues the evidence of the news articles did not satisfy the TCW Parties’ summary judgment burden because the TCW Parties did not show that any class member read the articles and that the articles put them on notice of a possible fraud claim. Finally, Prostok argues that his claims against the TCW Parties are not barred because he asserted those claims against them within four years of filing his original suit. C. Analysis A cause of action generally accrues when a wrongful act causes some legal injury to the plaintiff, even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred. Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex.1997); S.V. v. R.V., 933 S.W.2d 1, 6 (Tex.1996). However, a limited exception to this general rule exists, called the “discovery rule.” Murphy, 964 S.W.2d at 270. Where applicable, the discovery rule defers the accrual of a cause of action until the plaintiff knows or, in the exercise of reasonable diligence, should have known of the wrongfully caused injury. Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 735 (Tex.2001). The plaintiff need not know the specific nature of each wrongful act that may have caused the injury for his cause of action to accrue under the discovery rule. Id. Rather, it accrues when the plaintiff discovers or, in the exercise of reasonable diligence, should discover the “nature of his injury.” Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex.1998). Thus, the discovery rule only defers accrual of a cause of action until the plaintiff discovered, or should have discovered through reasonable diligence, the injury and that it was likely caused by the wrongful acts of another. Id. (citing S.V., 933 S.W.2d at 4). Once these requirements are satisfied, “limitations commences, even if the plaintiff does not know the exact identity of the wrongdoer.” Id. (emphasis added). The discovery rule applies only when the nature of the plaintiffs injury is inherently undiscoverable and objectively verifiable, Wagner & Brown, Ltd., 58 S.W.3d at 735, and in cases of fraud and fraudulent concealment. Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex.1996) (reason for applying discovery rule in situations of fraud or fraudulent concealment resembles concept of equitable estoppel, and differs from reasons for applying discovery rule in other contexts). The discovery rule also applies to claims of breach of fiduciary duty and conspiracy. See Altai 918 S.W.2d at 456 (in a fiduciary context, the nature of the injury is presumed to be inherently undis-coverable); In re Estate of Herring, 970 S.W.2d 583, 586 (Tex.App.-Corpus Christi 1998, no pet.) (discovery rule applies to conspiracy to commit fraud); Cathey v. First City Bank of Aransas Pass, 758 S.W.2d 818, 822 n. 3 (Tex.App.-Corpus Christi 1988, writ denied) (same). See also Willis v. Maverick, 760 S.W.2d 642, 645 (Tex.1988) (discovery rule applies in legal malpractice cases because of the fiduciary relationship between attorney and client). A defendant moving for summary judgment on the grounds that the claim asserted is barred by limitations must conclusively prove all the elements of that affirmative defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). This requires proof of the date the cause of action accrued and the applicable statute of limitations. A party relying on the discovery rule to avoid the bar of limitations must plead the rule or raise it in response to the assertion of limitations. KPMG, 988 S.W.2d at 748; Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex.1988). Where the discovery rule applies and has been raised by the plaintiff, as in this case, the defendant bears the burden of negating the discovery rule’s application on summary judgment. KPMG, 988 S.W.2d at 748. The defendant may do so by proving there is no genuine issue of material fact about when the plaintiff discovered or should have discovered the nature of the injury. Id. Applying these principles, we examine the record to determine whether the TCW Parties conclusively established that Prostok did not sue them within the applicable period after the date Prostok discovered or should have discovered the “nature of his injuries.” See Childs, 974 S.W.2d at 40. It is undisputed Prostok, on behalf of the Junior Bondholders, sued the TCW Parties on June 10, 1998. Thus, and assuming for purposes of argument that the four-year limitation period applies to Pros-tok’s claims (as he asserts), we consider whether the record conclusively established that Prostok acquired or, in the exercise of reasonable diligence, should have acquired “knowledge of the wrongful act[s] and the resulting injur[ies]” that form the basis of his claims before June 10,1994. See id. The TCW Parties’ arguments urge three alternate dates (all of which predate June 10, 1994) on which Prostok’s claims allegedly accrued: March 9, 1993, the date of the confirmation order; October 5, 1993, the date the cost-savings plan was announced; or some date in January/February 1994, when the national press published allegations that the TCW Parties and the other Senior Bondholders had induced management to delay the planned price increases and workforce reductions until after the bankruptcy plan was implemented. We begin by reviewing the record with respect to this last approximate date. The cost-savings plan was publicly announced in October of 1993, and was widely reported in the financial press. The record contains evidence that in February 1994, the New York Times quoted the lead attorney for the BT Committee as saying about National Gypsum, “the company was essentially saying to its senior bondholders, “We will give you the benefit of undervaluation if you give us employment contracts.’” Alison Leigh Cowan, Beware Management Talking Poor, N.Y. Times, Feb. 13, 1994, § 3, at 13. In another article, the same attorney claimed National Gypsum withheld the plans for the layoffs from the bankruptcy court, ‘You’ll never convince me that the company didn’t know it could increase its earnings by $30 million a year by cutting 12% of its work force.” Kelly Greene, Stock Soars as Some Sour on Settlement, Bus. J. of Chaklotte, Feb. 21, 1994, § 1, at 1. Charlotte, North Carolina, is the home base of New NGC. A similar article was published in Forbes magazine on January 31, 1994. Thus, by the end of February 1994, New NGC’s cost-savings plan had been announced and one of the lead attorneys for the BT Committee had publicly accused National Gypsum’s management and the holders of its senior indebtedness of misconduct in concealing the plan during the bankruptcy proceedings. In the exercise of reasonable diligence, Prostok and the Junior Bondholders should have been aware of these reports. The Junior Bondholders had reason to diligently follow the news of New NGC after the bankruptcy case. They had received warrants for New NGC stock in exchange for their bonds under the confirmed plan of reorganization. They had a keen interest in deciding when to exercise those warrants to maximize the return on their original investment. In this case, it would be reasonable to expect the Junior Bondholders to monitor news reports about New NGC in the financial press. Had they done so, they would have discovered information, such as the information contained in the articles just discussed, that at a minimum would have led a prudent person to make an inquiry leading to discovery of a cause of action. Hoover v. Gregory, 835 S.W.2d 668, 671 (Tex.App.-Dallas 1992, writ denied) (discovery occurs when plaintiff has knowledge of facts that would cause a reasonably prudent person to make inquiry that would lead to discovery of cause of action). In addition, the TCW Parties produced evidence linking the class representative, Prostok, to knowledge of the cost-savings plan’s announcement and the news articles. One of Prostok’s current attorneys, who was also one of the attorneys for the BT Committee in the bankruptcy, testified in deposition that he first discussed with Prostok the possibility of a lawsuit against National Gypsum’s management or others within days of the October 1993 public announcement of the cost-savings plan. The above evidence in the record, taken together, established that Prostok and the Junior Bondholders discovered, or in the exercise of reasonable diligence, should have discovered the nature of their injuries and that they were caused by the wrongful acts of another by no later than February 1994. Thus, limitations began to run from this date even if Prostok and the Junior Bondholders did not know the exact identity of the alleged wrongdoers. See Childs, 974 S.W.2d at 40. However, Prostok did not file suit on behalf of the Junior Bondholders against the TCW Parties until June 10, 1998, more than four years after the October 1993 announcement and the February 1994 news articles. Prostok alleged four causes of action against the TCW Parties: breach of fiduciary duty, aiding and abetting breach of fiduciary duty, fraud, and conspiracy. At the time these causes of action accrued and were filed against the TCW Parties, the courts of appeal were split on whether the two-year or four-year statute of limitations applied to claims for breach of fiduciary duty and aiding and abetting breach of fiduciary duty. Fraud is governed by a four-year statute of limitations, Williams v. Khalaf, 802 S.W.2d 651, 657 (Tex.1990), and conspiracy is governed by a two-year statute of limitations, Cathey, 758 S.W.2d at 822. Because limitations on all of Prostok’s claims against the TCW Parties accrued more than four years before he actually sued the TCW Parties, all of Prostok’s and the Junior Bondholders’ causes of action against the TCW Parties are barred by limitations. We also reject Prostok’s argument that he timely sued the TCW Parties because he added them as parties within four years of filing his original suit. As discussed above, Prostok and the Junior Bondholders knew or should have known of their injuries more than four years before they sued the TCW Parties. Filing suit against one party does not toll limitations against another party. See Cooke v. Maxam Tool and Supply, Inc., 854 S.W.2d 136, 139 (Tex.App.-Houston [14th Dist.] 1993, writ denied). Even so, Prostok’s conspiracy claims against the TCW Parties would still be barred because those causes of action accrued, at the absolute latest, by the date he filed suit against the Officers and Directors, and he did not bring the conspiracy claims against the TCW Parties within two years of that date. Prostok’s motion for rehearing argues that the TCW Parties did not meet their summary judgment burden with respect to their statute of limitations affirmative defense. Prostok cites one case for the general proposition that when discovery occurs is generally a fact question. See In re Beef Indus. Antitrust Litig., 600 F.2d 1148, 1170-71 (5th Cir.1979). We question whether the case would be decided the same way under current federal summary judgment practice. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.”) (citations omitted). Moreover, its facts are distinguishable from those of the case before us. Beef Industry involved multi-district litigation; it was not a class action case. Beef Industry, 600 F.2d at 1153. That court held that, for purposes of the discovery rule, even though the plaintiffs knew or should have known, through media attention, of a lawsuit similar to the one they later brought, knowledge of the other lawsuit did not as a matter of law constitute knowledge of their own cause of action. Id. at 1170-71. However, here the summary judgment evidence showed Prostok and the Junior Bondholders knew or should have known of both their injury and that it was caused by the wrongful acts of another more than four years before they sued the TCW Parties. See Childs, 974 S.W.2d at 40. After taking as true the summary judgment evidence favorable to Prostok and the Junior Bondholders, indulging every reasonable inference in their favor, and resolving any doubts in their favor, we conclude Prostok and the Junior Bondholders discovered, or should have discovered through reasonable diligence, the injury and that it was likely caused by the wrongful acts of another, more than four years before they sued the TCW Parties. See Childs, 974 S.W.2d at 40. Thus, we conclude the trial court erred in denying the TCW Parties’ motions for summary judgment based on limitations. We sustain the TCW Parties’ cross-point, reverse the trial court’s order denying the TCW Parties’ motion for summary judgment based on limitations, and render judgment in favor of the TCW Parties against Prostok. See Cincinnati Life Ins. Co., 927 S.W.2d at 624-26. Because of our disposition of the TCW Parties’ cross-point, we need not reach Prostok’s arguments that the trial court erred in granting summary judgment on his claims against the TCW Parties on other grounds. See Tex.R.App. P. 47.1. IV. Prostok’s Arguments Regarding Officers and Directors We now look at Prostok’s arguments with respect to the summary judgment granted to the Officers and Directors. In general, those arguments are that Pros-tok’s claims are not barred by section 1144 of the bankruptcy code and are not a collateral attack on the confirmation order; the claims are not based on perjury and spoliation of evidence; the claims are not barred by a “fraud on the market” theory of reliance; and the conspiracy claim is based on underlying torts. A. Bankruptcy Code Section 1144 and Collateral Attack One of the grounds for summary judgment the Officers and Directors asserted in their motions was that Prostok’s claims were barred because section 1144 of the United States Bankruptcy Code provides the exclusive remedy for appellees’ alleged conduct. Section 1144, entitled “Revocation of an order of confirmation,” states On request of a party in interest at any time before 180 days after the date of the entry on the order of confirmation, and after notice and a hearing, the court may revoke such order if and only if such order was procured by fraud. An order under this section revoking an order of confirmation shall— (1) contain such provisions as are necessary to protect any entity acquiring rights in good faith reb-anee on the order of confirmation; and (2) revoke the discharge of the debt- or. 11 U.S.C. § 1144 (1993). The Officers and Directors asserted Prostok’s claims are an impermissible collateral attack on the bankruptcy court’s confirmation order, and that because the 180-day deadline had expired, Prostok could no longer challenge the confirmation order. 1. Prostok’s Arguments Prostok contends section 1144 does not bar his claims because that section applies only to efforts to revoke a confirmation order, and he is not seeking to revoke the confirmation order. Instead, Prostok contends he is suing for common-law damages caused by alleged breaches of fiduciary duty, fraud, and related torts by the Officers and Directors, and section 1144 does not bar such a common-law suit for tort damages. Prostok’s brief acknowledges a need for bankruptcy proceedings to be final in order to protect innocent parties who rely on the confirmation order when doing business with the debtor. Thus, he agrees section 1144 bars fraud actions that seek to revoke the confirmation order more than 180 days after it was entered. However, he argues neither section 1144 nor the policies underlying that provision render the Officers and Directors immune from tort liability for common-law causes of action simply because the deadline for revoking the confirmation order has passed. If that were the case, he argues, wrongdoers in a bankruptcy proceeding would simply have to conceal their fraud successfully for 181 days, and defrauded parties would be left without any legal remedy. Prostok also argues the very bankruptcy court that entered the confirmation order also ruled that his state court suit was not a collateral attack on any of the bankruptcy court’s orders. In support of this argument, Prostok quotes the following language from bankruptcy court Judge Felsenthal’s March 26, 1996 Order in Adversary No. 395-3612, which remanded the case before us to state court: Although bankruptcy issues will undoubtedly be implicated in the litigation, the complaint does not seek to attack or undermine an order of this court. Nor does the complaint seek to set aside a provision of a settlement in a federal bankruptcy case. Prostok does not seek relief from a federal judgment on the basis of fraud. (citations omitted). Prostok also argues he is not attacking the confirmation order, collaterally or otherwise. According to Prostok, a collateral attack seeks to demonstrate that the underlying judgment is void because the court lacked jurisdiction. Prostok points out, however, that he has never asserted the bankruptcy court lacked jurisdiction over the National Gypsum bankruptcy; instead, he seeks to assert state court causes of action against parties other than National Gypsum or New NGC for conduct that occurred during and after that bankruptcy. Prostok stresses that he is not suing National Gypsum, the debtor in the bankruptcy proceeding. 2. The Officers’ and Directors’ Arguments The Officers and Directors contend section 1144 provides the exclusive means to undermine a confirmation order allegedly procured through fraud. They argue that, although Prostok’s claims are not styled in a manner that seeks directly to “revoke” the confirmation order, he is in fact attempting to “relitigate” the outcome of the bankruptcy proceeding. According to the Officers and Directors, Congress’s intent behind section 1144 was to safeguard the strong public policy favoring the finality of bankruptcy proceedings, and to hold Prostok’s claims are not barred would result in the constant threat of relitigation of bankruptcy cases. In light of this policy and the “purpose and effect” of Prostok’s claims, they argue the claims are barred because Prostok failed to seek relief under section 1144 within the applicable 180-day time period. In support of their position, the Officers and Directors claim the courts of the Fifth Circuit have repeatedly barred this sort of attack on a bankruptcy plan. Further, they cite four bankruptcy court cases and argue that “overwhelming” authority elsewhere establishes that section 1144 bars fraud claims beyond 180 days of confirmation, even if the alleged fraud is not discovered until later. Essentially, the Officers and Directors claim that a direct attack of a confirmation order under section 1144 is the exclusive means to assert claims of fraud in the context of a bankruptcy proceeding, and anything other than such a direct attack or appeal of the confirmation order constitutes an impermissible collateral attack of the bankruptcy court order. They also argue claims such as Prostok’s may only be brought in a direct attack on the confirmation order filed in the same court that rendered the judgment. Thus, they argue the bankruptcy court order is not subject to attack in Texas